Exhibit 10.2B
B&W DRAFT 5/12/98
CREDIT AGREEMENT
dated as of
___, 1998
between
RECKSON SERVICE INDUSTRIES, INC.,
as Borrower
and
RECKSON OPERATING PARTNERSHIP, L.P.,
as Lender
relating to
RECKSON STRATEGIC VENTURE PARTNERS, LLC
Table of Contents
Page
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions........................................................1
(a) Terms Generally.......................................................1
(b) Other Terms...........................................................1
ARTICLE II.
THE REVOLVING CREDIT FACILITY
Section 2.1 Commitment and Loans...............................................6
Section 2.2 Borrowing Procedure................................................6
Section 2.3 Termination and Reduction of Commitment............................6
Section 2.4 Repayment..........................................................6
Section 2.5 Optional Prepayment................................................7
ARTICLE III.
INTEREST AND FEES
Section 3.1 Interest Rate......................................................7
Section 3.2 Interest on Overdue Amounts........................................7
Section 3.3 Maximum Interest Rate..............................................8
ARTICLE IV.
DISBURSEMENT AND PAYMENT
Section 4.1 Method and Time of Payments........................................8
Section 4.2 Compensation for Losses............................................9
Section 4.3 Withholding and Additional Costs...................................9
(a) Withholding...........................................................9
(b) Additional Costs.....................................................10
(c) Certificate, Etc.....................................................10
Section 4.4 Expenses; Indemnity...............................................10
Section 4.5 Survival..........................................................11
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties....................................11
(a) Good Standing and Power..............................................11
(b) Authority............................................................11
(c) Authorizations.......................................................12
(d) Binding Obligation...................................................12
(e) Litigation...........................................................12
(f) No Conflicts.........................................................12
(g) Taxes................................................................12
(h) Properties...........................................................12
(i) Compliance with Laws and Charter Documents...........................13
(j) No Material Adverse Effect...........................................13
(k) Disclosure...........................................................13
Section 5.2 Survival..........................................................13
ARTICLE VI.
CONDITIONS PRECEDENT
Section 6.1 Conditions to the Availability of the Commitment..................13
(a) This Agreement.......................................................13
(b) Certificate of Incorporation and By-Laws.............................13
(c) Representations and Warranties.......................................14
(d) Other Documents......................................................14
(e) REIT Status of Reckson...............................................14
(f) Certain Loans Subject to Reckson's Approval..........................14
Section 6.2 Conditions to All Loans...........................................14
(a) Borrowing Request....................................................14
(b) No Default...........................................................14
(c) Debt-to-Equity Ratio.................................................14
(d) Representations and Warranties; Covenants............................14
Section 6.3 Satisfaction of Conditions Precedent..............................15
ARTICLE VII.
COVENANTS
Section 7.1 Affirmative Covenants.............................................15
(a) Financial Statements; Compliance Certificates........................15
(b) Existence............................................................15
(c) Compliance with Law and Agreements...................................16
(d) Authorizations.......................................................16
(e) Inspection...........................................................16
(f) Maintenance of Records...............................................16
(g) Notice of Defaults and Adverse Developments..........................16
Section 7.2 Negative Covenants................................................16
(a) Mergers, Consolidations and Sales of Assets..........................17
(b) Liens................................................................17
(c) Indebtedness.........................................................17
(d) Dividends............................................................17
(e) Certain Amendments...................................................17
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.1 Events of Default.................................................17
ARTICLE IX.
EVIDENCE OF LOANS; TRANSFERS
Section 9.1 Evidence of Loans.................................................19
ARTICLE X.
MISCELLANEOUS
Section 10.1 Applicable Law...................................................20
Section 10.2 Waiver of Jury...................................................20
Section 10.3 Jurisdiction and Venue; Service of Process.......................20
Section 10.4 Confidentiality..................................................21
Section 10.5 Amendments and Waivers...........................................21
Section 10.6 Cumulative Rights; No Waiver.....................................21
Section 10.7 Notices..........................................................21
Section 10.8 Certain Acknowledgments..........................................22
Section 10.9 Separability.....................................................22
Section 10.10 Parties in Interest.............................................22
Section 10.11 Execution in Counterparts.......................................22
CREDIT AGREEMENT, dated as of ___, 1998, between Reckson Service
Industries, Inc., a Delaware corporation, and Reckson Operating Partnership,
L.P., a Delaware limited partnership relating to Reckson Strategic Venture
Partners, LLC ("RSVP").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lender to commit to lend to
the Borrower up to $100 million on a revolving basis for investment in RSVP; and
WHEREAS, the Lender is willing to make revolving credit loans on the
terms and conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions.
(a) Terms Generally. The definitions ascribed to terms in this
Agreement apply equally to both the singular and plural forms of such terms.
Whenever the context may require, any pronoun shall be deemed to include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". The phrase "individually or in the aggregate" shall be
deemed general in scope and not to refer to any specific Section or clause of
this Agreement. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require. The
table of contents, headings and captions herein shall not be given effect in
interpreting or construing the provisions of this Agreement. Except as otherwise
expressly provided herein, all references to "dollars" or "$" shall be deemed
references to the lawful money of the United States of America.
(b) Other Terms. The following terms have the meanings ascribed to
them below or in the Sections of this Agreement indicated below:
"Adjusted Indebtedness" means, with respect to the Borrower, the
Borrower's Indebtedness determined without regard for any amounts described
in clause (viii) of the definition of "Indebtedness."
"Affiliate" means, with respect to any Person, any other Person that
controls, is controlled by, or is under common control with, such Person.
"Agreement" means this credit agreement, as it may be amended,
modified or supplemented from time to time.
"Available Commitment" means, on any day, an amount equal to (i) the
Commitment on such day minus (ii) the aggregate outstanding principal
amount of Loans on such day.
"Borrower" means Reckson Service Industries, Inc., a Delaware
corporation.
"Borrowing Date" means, with respect to any Loan, the Business Day set
forth in the relevant Borrowing Request as the date upon which the Borrower
desires to borrow such Loan;
"Borrowing Request" means a request by the Borrower for a Loan, which
shall specify (i) the requested Borrowing Date and (ii) the aggregate
amount of such Loan.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in The City of New York are authorized by law
to close.
"Capital Lease Obligations" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease with
respect to any property (whether real, personal or mixed) acquired or
leased by such Person that is required to be accounted for as a liability
on a consolidated balance sheet of such Person.
"Commitment" means $100 million less (i) the amount of loans made by
the Lender to the Borrower for the funding of investments made by RSVP
prior to the spin-off distribution of shares of common stock of Borrower by
Reckson and (ii) the amount of any investments made by the Lender in joint
venture investments made with RSVP, and as such amount may be reduced from
time to time pursuant to Section 2.3.
"Commitment Termination Date" means the earlier to occur of (i) May
__, 2003 and (ii) the date, if any, on which the Commitment is terminated.
"Confidential Information" means information delivered to the Lender
by or on behalf of the Borrower in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is
confidential or proprietary in nature at the time it is so delivered or
information obtained by the Lender in the course of its review of the books
or records of the Borrower contemplated herein; provided that such term
shall not include information W that was publicly known or otherwise known
to the Lender prior to the time of such disclosure, (ii) that subsequently
becomes publicly known through no act or omission by the Lender or any
Person acting on the Lender's behalf, (iii) that otherwise becomes known to
the Lender other than through disclosure by the Borrower or (iv) that
constitutes financial information delivered to the Lender that is otherwise
publicly available.
"Default" means any event or circumstance which, with the giving of
notice or the passage of time, or both, would be an Event of Default.
"EBITDA" means for any fiscal period, the Consolidated Net Income or
Consolidated Net Loss, as the case may be, for such fiscal period, after
restoring thereto amounts deducted for (a) extraordinary losses (or
deducting therefrom any amounts included therein on account of
extraordinary gains) and special charges, (b) depreciation and amortization
(including write-offs or write-downs) and special charges, (c) the amount
of interest expense of the Borrower and its Subsidiaries, if any,
determined on a consolidated basis in accordance with GAAP, for such period
on the aggregate principal amount of their consolidated indebtedness, (d)
the amount of tax expense of the Borrower and its Subsidiaries, if any,
determined on a consolidated basis in accordance with GAAP, for such period
and (e) the aggregate amount of fixed and contingent rentals payable by the
Borrower and its Subsidiaries, if any, determined on a consolidated basis
in accordance with GAAP, for such period with respect to leases of real and
personal property.
"Effective Date" has the meaning assigned to such term in Section 6.1.
"Event of Default" has the meaning assigned to such term in Section
8.1.
"GAAP" means generally accepted accounting principles, as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant
segment of the accounting profession of the United States of America.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or
to advance or supply funds for the purchase of) any security for the
payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness or (iii) to maintain working capital, equity
capital or the financial condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness. The term
"Guaranteed" shall have the corresponding meaning.
"Indebtedness" means, with respect to any Person, (i) all obligations
of such Person for borrowed money or for the deferred purchase price of
property or services (including all obligations, contingent or otherwise,
of such Person in connection with letters of credit, bankers' acceptances,
interest rate swap agreements, interest rate cap agreements or other
similar instruments, including currency swaps) other than indebtedness to
trade creditors and service providers incurred in the ordinary course of
business and payable on usual and customary terms, (ii) all obligations of
such Person evidenced by bonds, notes, debentures or other similar
instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the remedies available to the
seller or lender under such agreement are limited to repossession or sale
of such property), (iv) all Capital Lease Obligations of such Person, (v)
all obligations of the types described in clauses (i), (ii), (iii) or (iv)
above secured by (or for which the obligee has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in any property
(including accounts, contract rights and other intangibles) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, (vi) all preferred stock issued by such
Person which is redeemable, prior to full satisfaction of the Borrower's
obligations under this Agreement (including repayment in full of the Loans
and all interest accrued thereon), other than at the option of such Person,
valued at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (vii) all Indebtedness of
others Guaranteed by such Person and (viii) all Indebtedness of any
partnership of which such Person is a general partner.
"Indemnitee" has the meaning assigned to such term in Section 4.4(b).
"Intercompany Agreement" means the intercompany agreement, dated as of
the date hereof, by and between the Borrower and the Lender.
"Interest Period" means, with respect to any Loan, each three-month
period commencing on the date such Loan is made or at the end of the
preceding Interest Period, as the case may be; provided, however, that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next Business Day, unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end on the last Business
Day of a calendar month; and
(iii) any Interest Period that would otherwise end after the
Commitment Termination Date then in effect shall end on such
Commitment Termination Date.
"Lender" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"Lien" means, with respect to any asset of a Person, (i) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or
on such asset, (ii) the interest of a vendor or lessor under any
conditional sale agreement, capital lease or title retention agreement
relating to such asset, and (iii) in the case of securities, any purchase
option, call or similar right of any other Person with respect to such
securities.
"Loans" has the meaning assigned to such term in Section 2.1.
"Material Adverse Effect" means any material and adverse effect on (i)
the consolidated business, properties, condition (financial or otherwise)
or operations, present or prospective, of the Borrower and its
Subsidiaries, (ii) the ability of the Borrower timely to perform any of its
material obligations, or of the Lender to exercise any remedy, under this
Agreement or (iii) the legality, validity, binding nature or enforceability
of this Agreement.
"Net Assets" means, with respect to the Borrower, the greater of (i)
the sum of the Borrower's paid-in capital and retained earnings or (ii) the
excess of the Value of all of the Borrower's assets of any kind over the
Borrower's Adjusted Indebtedness.
"Permitted Liens" means, collectively, the following: (i) Liens
expressly approved by the Lender, which approval shall not be unreasonably
withheld; (ii) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or that are being contested in good
faith by appropriate proceedings and for which adequate reserves are being
maintained (in accordance with GAAP); and (iii) Liens existing on the date
hereof.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether
Federal, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Prime Rate" means the prime rate (or if a range is given, the highest
prime rate) listed under "Money Rates" in THE WALL STREET JOURNAL for such
date or, if THE WALL STREET JOURNAL is not published on such date, then in
THE WALL STREET JOURNAL most recently published.
"Reckson" means Reckson Associates Realty Corp., a Maryland
corporation.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or any vice
president, senior vice president or executive vice president of the General
Partner.
"RSI Facility Agreement" means the credit agreement dated the date
hereof between Borrower and Lender in respect of the operations of Reckson
Service Industries, Inc.
"RSVP Platform" means a particular real estate market sector in which
RSVP invests.
"SEC" means the Securities and Exchange Commission (or any successor
Governmental Authority).
"Subsidiary" means, at any time and with respect to any Person, any
other Person the shares of stock or other ownership interests of which
having ordinary voting power to elect a majority of the board of directors
or with respect to other matters of such Person are at the time owned, or
the management or policies of which is otherwise at the time controlled,
directly or indirectly through one or more intermediaries (including other
Subsidiaries) or both, by such first Person. Unless otherwise qualified or
the context indicates clearly to the contrary, all references to a
"Subsidiary" or "Subsidiaries" in this Agreement refer to a Subsidiary or
Subsidiaries of the Borrower.
"Taxes" has the meaning assigned to such term in Section 4.3(a).
"Value" means, with respect to any asset owned by the Borrower, the
present value of the net cash flow reasonably projected by the Borrower to
be received with respect to its ownership of such assets, discounted at an
interest rate that the Borrower reasonably determines appropriate given the
risks associated with such asset and such projected net cash flow, but in
no event at an interest rate lower than ___% above the Prime Rate in effect
at the time that the determination of Value is made.
ARTICLE II.
THE REVOLVING CREDIT FACILITY
Section 2.1 Commitment and Loans. Until the Commitment Termination Date,
subject to the terms and conditions of this Agreement, the Lender agrees to make
revolving credit loans (collectively, "Loans") in dollars to the Borrower in an
aggregate principal amount at any one time outstanding not to exceed the
Commitment.
Section 2.2 Borrowing Procedure. In order to borrow a Loan, the Borrower
shall give a Borrowing Request to the Lender, by telephone, telex or telecopy or
in writing, not later than 10:30 A.M., New York time, on the third Business Day
before the Borrowing Date (or such later time or date as the Lender may in its
sole discretion permit). (If any Borrowing Request is made otherwise than in
writing, Borrower shall promptly confirm such Borrowing Request in writing.)
Subject to satisfaction, or waiver by the Lender, of each of the applicable
conditions precedent contained in Article VI, on the Borrowing Date the Lender
shall make available, in immediately available funds, to the Borrower the amount
of the requested Loan.
Section 2.3 Termination and Reduction of Commitment. The Borrower may
terminate the Commitment, or reduce the amount thereof, by giving written notice
to the Lender, not later than 5:00 P.M., New York time, on the fifth Business
Day prior to the date of termination or reduction (or such later time or date as
the Lender may in its sole discretion permit).
Section 2.4 Repayment. Loans shall be repaid, together with all accrued and
unpaid interest thereon, on the Commitment Termination Date.
Section 2.5 Optional Prepayment. The Borrower may prepay Loans by giving
notice (specifying the Loans to be prepaid in whole or in part, the principal
amount thereof to be prepaid and the date of prepayment) to the Lender, by
telephone, telex, telecopy or in writing not later than 12:00 noon, New York
time, on the fourth Business Day preceding the proposed date of prepayment (or
such later time or date as the Lender may in its sole discretion permit). (If
any such prepayment notice is made otherwise than in writing, Borrower shall
promptly confirm such notice in writing.) Each such prepayment shall be at the
aggregate principal amount of the principal being prepaid, together with accrued
interest on the principal being prepaid to the date of prepayment and the
amounts required by Section 4.3. Subject to the terms and conditions of this
Agreement, prepaid Loans may be reborrowed.
ARTICLE III.
INTEREST AND FEES
Section 3.1 Interest Rate. Each Loan shall bear interest from the date made
until the date repaid, payable in arrears, with respect to Interest Periods of
three months or less, on the last day of such Interest Period, and with respect
to Interest Periods longer than three months, on the day which is three months
after the commencement of such Interest Period and on the last day of such
Interest Period, at a rate per annum equal to the greater of (i) the sum of (x)
2% and (y) the Prime Rate for the applicable Interest Period and (ii) 12%, with
such 12% rate increasing to 12.48%, 12.98%, 13.50% and 14.04% as of May __ for
the second, third, fourth and fifth years of this Agreement, respectively.
Notwithstanding the foregoing, if the amount of interest to be paid by the
Borrower to the Lender exceeds the amount of EBITDA of the Borrower for the
immediately preceding calendar quarter (ending the last day of September,
December, March, or June), the Borrower shall not be obligated to repay the
amount of interest in excess of EBITDA of the Borrower for such period. Any such
amount of unpaid interest shall be added to principal and shall accrue interests
thereon. Payments under the Notes shall be applied first to any fees, costs or
expenses due under the Notes or hereunder, then to interest, and then to
principal. Notwithstanding any other provision of this Agreement, all
outstanding principal and interest of the Loan and all other amounts payable
hereunder, if not sooner paid, shall be due and payable on the Commitment
Termination Date.
Section 3.2 Interest on Overdue Amounts. All overdue amounts (including
principal, interest and fees) hereunder, and, during the continuance of any
Event of Default that shall have occurred, each Loan, shall bear interest,
payable on demand, at a rate per annum equal to the greater of (i) the sum of
(1) 3% and (ii) Prime Rate for the applicable Interest Period and (ii) 13%, with
such 13% rate increasing to 13.48%, 13.98%, 14.50% and 15.04% for the second,
third, fourth and fifth years of this Agreement, respectively.
Section 3.3 Maximum Interest Rate. (a) Nothing in this Agreement shall
require the Borrower to pay interest at a rate exceeding the maximum rate
permitted by applicable law. Neither this Section nor Section 10.1 is intended
to limit the rate of interest payable for the account of the Lender to the
maximum rate permitted by the laws of the State of New York (or any other
applicable law) if a higher rate is permitted with respect to the Lender by
supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of the Lender on any
interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be charged by the Lender, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of the Lender in
respect of any interest computation period is reduced pursuant to Section 3.3(b)
and the amount of interest payable for its account in respect of any subsequent
interest computation period would be less than the maximum amount permitted by
law to be charged by the Lender, then the amount of interest payable for its
account in respect of such subsequent interest computation period shall be
automatically increased to such maximum permissible amount; provided that at no
time shall the aggregate amount by which interest paid for the account of the
Lender has been increased pursuant to this Section 3.3(c) exceed the aggregate
amount by which interest paid for its account has theretofore been reduced
pursuant to Section 3.3(b).
ARTICLE IV.
DISBURSEMENT AND PAYMENT
Section 4.1 Method and Time of Payments.
(a) All payments by the Borrower hereunder shall be made without setoff or
counterclaim to the Lender, for its account, in dollars and in immediately
available funds to the account of the Lender theretofore designated in writing
to the Borrower not later than 12:00 noon, New York time, on the date when due
or, in the case of payments pursuant to Sections 4.3 and 4.4 or payments
otherwise specified as payable upon demand, forthwith upon written demand
therefor.
(b) Whenever any payment from the Borrower shall be due on a day that is
not a Business Day, the date of payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
Section 4.2 Compensation for Losses. (a) If (i) the Borrower prepays Loans,
(ii) the Borrower revokes any Borrowing Request or (iii) Loans (or portions
thereof) shall become or be declared to be due prior to the scheduled maturity
thereof, then the Borrower shall pay to the Lender an amount that will
compensate the Lender for any loss (other than lost profit) or premium or
penalty incurred by the Lender as a result of such prepayment, declaration or
revocation in respect of funds obtained for the purpose of making or maintaining
the Lender's Loans, or any portion thereof. Such compensation shall include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so paid or prepaid, or not borrowed, for the period
from the date of such payment or prepayment or failure to borrow to the last day
of such Interest Period (or, in the case of a failure to borrow, the Interest
Period that would have commenced on the expected Borrowing Date) in each case at
the applicable rate of interest for such Loan over (ii) the amount of interest
(as reasonably determined by the Lender) that would have accrued on such amount
were it on deposit for a comparable period with leading banks in the London
interbank market.
(b) If requested by the Borrower, in connection with a payment due pursuant
to this Section 4.2, the Lender shall provide to the Borrower a certificate
setting forth in reasonable detail the amount required to be paid by the
Borrower to the Lender and the computations made by the Lender to determine such
amount. In the absence of manifest error, such certificate shall be conclusive
as to the amount required to be paid.
Section 4.3 Withholding and Additional Costs.
(a) Withholding. All payments under this Agreement (including payments of
principal and interest) shall be payable to the Lender free and clear of any and
all present and future taxes, levies, imposts, duties, deductions, withholdings,
fees, liabilities and similar charges (collectively, "Taxes") . If any Taxes are
required to be withheld or deducted from any amount payable under this
Agreement, then the amount payable under this Agreement shall be increased to
the amount WHICH, AFTER deduction from such increased amount of all Taxes
required to be withheld or deducted therefrom, will yield to the Lender the
amount stated to be payable under this Agreement. The Borrower shall also hold
the Lender harmless and indemnify it for any stamp or other taxes with respect
to the preparation, execution, delivery, recording, performance or enforcement
of this Agreement (all of WHICH SHALL be included within "Taxes") . If any of
the Taxes specified in this Section 4.3(a) are paid by the Lender, the Borrower
shall, upon demand of the Lender, promptly reimburse the Lender for such
payments, together with any interest, penalties and expenses incurred in
connection therewith. The Borrower shall deliver to the Lender certificates or
other valid vouchers for all Taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder.
(b) Additional Costs. Subject to Section 4.3(c), and without duplication of
any amounts payable described in Section 4.2 or 4.3(a), if after the date hereof
any change in any law or regulation or in the interpretation thereof by any
court or administrative or Governmental Authority charged with the
administration thereof or the enactment of any law or regulation shall either
(1) impose, modify or deem applicable any reserve, special deposit or similar
requirement against the Lender's Commitment or Loans or (2) impose on the Lender
any other condition regarding this Agreement, its Commitment or the Loans and
the result of any event referred to in clause (1) or (2) shall be to increase
the cost to the Lender of maintaining its Commitment or any Loans made by the
Lender (which increase in cost shall be calculated in accordance with the
Lender's reasonable averaging and attribution methods) by an amount which the
Lender deems to be material, then, upon demand by the Lender, the Borrower shall
pay to the Lender an amount equal to such increase in cost.
(c) Certificate, Etc. If requested by the Borrower, in connection with any
demand for payment pursuant to this Section 4.3, the Lender shall provide to the
Borrower a certificate setting forth in reasonable detail the basis for such
demand, the amount required to be paid by the Borrower to the Lender, the
computations made by the Lender to determine such amount and satisfaction of the
conditions set forth in the next sentence. Anything to the contrary herein
notwithstanding, the Lender shall not have the right to demand any payment or
compensation under this Section 4.3 (i) with respect to any period more than 180
days prior to the date it has made a demand pursuant to this Section 4.3, and
(ii) to the extent that the Lender determines in good faith that the interest
rate on the relevant Loans appropriately accounts for any increased cost or
reduced rate of return. In the absence of manifest error, the certificate
referred to above shall be conclusive as to the amount required to be paid.
Section 4.4 Expenses; Indemnity. (a) The Borrower agrees: (i) to pay or
reimburse the Lender for all reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of Xxxxx & Xxxx LLP, counsel to the Lender; and (ii) to
pay or reimburse the Lender for all reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Lender. The Borrower also
agrees to indemnify the Lender against any transfer taxes, documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement.
(b) The Borrower agrees to indemnify the Lender and its directors,
officers, partners, employees, agents and Affiliates (for purposes of this
paragraph, each, an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all claims, liabilities, damages, losses, costs, charges and
expenses (including fees and expenses of counsel) incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated by this Agreement, the performance by the parties
thereto of their respective obligations under this Agreement or the consummation
of the transactions and the other transactions contemplated by this Agreement,
(ii) the use of the proceeds of the Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) All amounts due under this Section 4.4 shall be payable in immediately
available funds upon written demand therefor.
Section 4.5 Survival. The provisions of Sections 4.2, 4.3 and 4.4 shall
remain operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the reduction or termination of the
Commitment, the invalidity or unenforceability of any term or provision of this
Agreement, or any investigation made by or on behalf of the Lender.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties. The Borrower represents and
warrants to the Lender as follows:
(a) Good Standing and Power. The Borrower and each Subsidiary is a
limited partnership or corporation, duly organized and validly existing in
good standing under the laws of the jurisdiction of its organization; each
has the power to own its property and to carry on its business as now being
conducted; and each is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the properties
owned or leased by it therein or in which the transaction of its business
makes such qualification necessary, except where the failure to be so
qualified, or to be in good standing, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Authority. The Borrower has full power and authority to execute
and deliver, and to incur and perform its obligations under, this
Agreement, which has been duly authorized by all proper and necessary
action. No consent or approval of limited partners is required as a
condition to the validity or performance of, or the exercise by the Lender
of any of its rights or remedies under, this Agreement.
(c) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from any
Governmental Authority or other Person necessary for the execution,
delivery and performance by the Borrower of, and the incurrence and
performance of each of its obligations under, this Agreement, and the
exercise by the Lender of its remedies under this Agreement have been
effected or obtained and are in full force and effect.
(d) Binding Obligation. This Agreement constitutes the valid and
legally binding obligation of the Borrower enforceable in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(e) Litigation. There are no proceedings or investigations now pending
or, to the knowledge of the Borrower, threatened before any court or
arbitrator or before or by any Governmental Authority which, individually
or in the aggregate, if determined adversely to the interests of the
Borrower or any Subsidiary, could reasonably be expected to have a Material
Adverse Effect.
(f) No Conflicts. There is no statute, regulation, rule, order or
judgment, and no provision of any agreement or instrument binding upon the
Borrower or any Subsidiary, or affecting their properties, and no provision
of the certificate of limited partnership, certificate of incorporation,
agreement of limited partnership or by-laws (or similar constitutive
instruments) of the Borrower or any Subsidiary, that would prohibit,
conflict with or in any way impair the execution or delivery of, or the
incurrence or performance of any obligations of the Borrower under, this
Agreement, or result in or require the creation or imposition of any Lien
on property of the Borrower or any Subsidiary as a consequence of the
execution, delivery and performance of this Agreement.
(g) Taxes. The Borrower and the Subsidiaries each has filed or caused
to be filed all tax returns that are required to be filed and paid all
taxes that are required to be shown to be due and payable on said returns
or on any assessment made against it or any of its property and all other
taxes, assessments, fees, liabilities, penalties or other charges imposed
on it or any of its property by any Governmental Authority, except for any
taxes, assessments, fees, liabilities, penalties or other charges which are
being contested in good faith and (unless the amount thereof is not
material to the Borrower's consolidated financial condition) for which
adequate reserves have been established in accordance with GAAP.
(h) Properties. The Borrower and the Subsidiaries each has good and
marketable title to, or valid leasehold interests in, all of its respective
properties and assets. All such assets and properties are so owned or held
free and clear of all Liens, except Permitted Liens.
(i) Compliance with Laws and Charter Documents. Neither the Borrower
nor any Subsidiary is, or as a result of performing any of its obligations
under this Agreement will be, in violation of (a) any law, statute, rule,
regulation or order of any Governmental Authority applicable to it or its
properties or assets or (b) its certificate of limited partnership,
certificate of incorporation, agreement of limited partnership, by-laws or
any similar document.
(j) No Material Adverse Effect. Since June __, 1997, there has not
occurred or arisen any event, condition or circumstance that, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(k) Disclosure. All information relating to the Borrower or its
Subsidiaries delivered in writing to the Lender in connection with the
negotiation, execution and delivery of this Agreement is true and complete
in all material respects. There is no material fact of which the Borrower
is aware which, individually or in the aggregate, would reasonably be
expected adversely to influence the Lender's credit analysis relating to
the Borrower and its Subsidiaries which has not been disclosed to the
Lender in writing.
Section 5.2 Survival. All representations and warranties made by the
Borrower in this Agreement, and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement, shall be
considered to have been relied upon by the Lender, (ii) survive the making of
Loans regardless of any investigation made by, or on behalf of, the Lender and
(iii) continue in full force and effect as long as the Commitment has not been
terminated and, thereafter, so long as any Loan, fee or other amount payable
under this Agreement remains unpaid.
ARTICLE VI.
CONDITIONS PRECEDENT
Section 6.1 Conditions to the Availability of the Commitment. The
obligations of the Lender hereunder are subject to, and the Lender's Commitment
shall not become available until the earliest date (the "Effective Date") on
which each of the following conditions precedent shall have been satisfied or
waived in writing by the Lender:
(a) This Agreement. The Lender shall have received this Agreement
duly executed and delivered by the Borrower.
(b) Certificate of Incorporation and By-Laws. The Lender shall have
received the following:
(i) a copy of the Certificate of Incorporation of the Borrower,
as in effect on the Effective Date, certified by the Secretary of
State of Delaware, and a certificate from such Secretary of State as
to the good standing of the Borrower, in each case as of a date
reasonably close to the Effective Date; and
(ii) a certificate of a Responsible Officer of the Borrower,
dated the Effective Date, and stating that attached thereto is a true
and complete copy of the By-Laws of the Borrower as in effect on such
date.
(c) Representations and Warranties. The representations and warranties
contained in Section 5.1 shall be true and correct on the Effective Date,
and the Lender shall have received a certificate, signed by a Responsible
Officer of the Borrower, to that effect.
(d) Other Documents. The Lender shall have received such other
certificates, opinions and other documents as the Lender reasonably may
require.
(e) REIT Status of Reckson. The borrowing shall not, in the sole
judgment of the Lender, endanger Reckson's status as a REIT.
(f) Certain Loans Subject to Reckson's Approval. In respect of any
Loan or Loans aggregating $25 million in a single RSVP Platform, Reckson
shall have approved the Lender's making such Loan in its sole discretion.
Section 6.2 Conditions to All Loans. The obligations of the Lender to make
each Loan are subject to the conditions precedent that, on the date of each Loan
and after giving effect thereto, each of the following conditions precedent
shall have been satisfied, or waived in writing by the Lender:
(a) Borrowing Request. The Lender shall have received a Borrowing
Request in accordance with the terms of this Agreement.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing, nor shall any Default or Event of Default occur as a result
of the making of such Loan.
(c) Debt-to-Equity Ratio. The Lender shall have received from the
Borrower a certificate demonstrating that the ratio of the Borrower's
Adjusted Indebtedness to the Borrower's Net Assets, taking into account the
requested Loan and the assets, if any, to be acquired by the Borrower with
the proceeds of such Loan, shall not exceed 4-to-1.
(d) Representations and Warranties; Covenants. The representations
and warranties contained in Section 5.1 shall have been true and correct
when made and (except to the extent that any representation or warranty
speaks as of a date certain) shall be true and correct on the Borrowing
Date with the same effect as though such representations and warranties
were made on such Borrowing Date; and the Borrower shall have complied with
all of its covenants and agreements under this Agreement.
Section 6.3 Satisfaction of Conditions Precedent. Each of (i) the delivery
by the Borrower of a Borrowing Request (unless the Borrower notifies the Lender
in writing to the contrary prior to the Borrowing Date) and (ii) the acceptance
of the proceeds of a Loan shall be deemed to constitute a certification by the
Borrower that, as of the Borrowing Date, each of the conditions precedent
contained in Section 6.2 has been satisfied with respect to the Loan then being
made.
ARTICLE VII.
COVENANTS
Section 7.1 Affirmative Covenants. Until satisfaction in full of all the
obligations of the Borrower under this Agreement and termination of the
Commitment of the Lender hereunder, the Borrower will:
(a) Financial Statements; Compliance Certificates . Furnish to the
Lender:
(i) as soon as available, but in no event more than 60 days
following the end of each of the first three quarters of each fiscal
year, copies of the Borrower's Quarterly Report on Form 10-Q being
filed with the SEC, which shall include a consolidated balance sheet
and consolidated income statement of the Borrower and the Subsidiaries
for such quarter;
(ii) as soon as available, but in no event more than 120 days
following the end of each fiscal year, a copy of the Borrower's Annual
Report on Form 10-K being filed with the SEC, which shall include the
consolidated financial statements of the Borrower and the
Subsidiaries, together with a report thereon by Ernst & Young LLP (or
another firm of independent certified public accountants reasonably
satisfactory to the Lender), for such year;
(iii) within five Business Days of any Responsible Officer of the
Borrower obtaining knowledge of any Default or Event of Default, if
such Default or Event of Default is then continuing, a certificate of
a Responsible Officer of the Borrower stating that such certificate is
a "Notice of Default" and setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto; and
(iv) such additional information, reports or statements,
regarding the business, financial condition or results of operations
of the Borrower and its Subsidiaries, as the Lender from time to time
may reasonably request.
(b) Existence. Except as permitted by Section 7.2(a), maintain its
existence in good standing and qualify and remain qualified to do business
in each jurisdiction in which the character of the properties owned or
leased by it therein or in which the transaction of its business is such
that the failure to qualify, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(c) Compliance with Law and Agreements. Comply, and cause each
Subsidiary to comply, with all applicable laws, ordinances, orders, rules,
regulations and requirements of all Governmental Authorities and with all
agreements except where the necessity of compliance therewith is contested
in good faith by appropriate proceedings or where the failure to comply
therewith, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(d) Authorizations. Obtain, make and keep in full force and effect all
authorizations from and registrations with Governmental Authorities
required for the validity or enforceability of this Agreement.
(e) Inspection. Permit, and cause each Subsidiary to permit, the
Lender to have one or more of its officers and employees, or any other
Person designated by the Lender, to visit and inspect any of the properties
of the Borrower and the Subsidiaries and to examine the minute books, books
of account and other records of the Borrower and the Subsidiaries, and to
photocopy extracts from such minute books, books of account and other
records, and to discuss its affairs, finances and accounts with its
officers and with the Borrower's independent accountants, during normal
business hours and at such other reasonable times, for the purpose of
monitoring the Borrower's compliance with its obligations under this
Agreement.
(f) Maintenance of Records. Keep, and cause each Subsidiary to keep,
proper books of record and account in which full, true and correct entries
will be made of all dealings or transactions of or in relation to its
business and affairs.
(g) Notice of Defaults and Adverse Developments. Promptly notify the
Lender upon the discovery by any Responsible officer of the occurrence of
(i) any Default or Event of Default; (ii) any event, development or
circumstance whereby the financial statements most recently furnished to
the Lender fail in any material respect to present fairly, in accordance
with GAAP, the financial condition and operating results of the Borrower
and the Subsidiaries as of the date of such financial statements; (iii) any
material litigation or proceedings that are instituted or threatened (to
the knowledge of the Borrower) against the Borrower or any Subsidiary or
any of their respective assets; (iv) any event, development or circumstance
which, individually or in the aggregate, could reasonably be expected to
result in an event of default (or, with the giving of notice or lapse of
time or both, an event of default) under any Indebtedness and the amount
thereof; and (v) any other development in the business or affairs of the
Borrower or any Subsidiary if the effect thereof would reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect; in each case describing the nature thereof and the action the
Borrower proposes to take with respect thereto.
Section 7.2 Negative Covenants. Until satisfaction in full of all the
obligations of the Borrower under this Agreement and termination of the
Commitment of the Lender hereunder, the Borrower will not:
(a) Mergers, Consolidations and Sales of Assets. Wind up, liquidate or
dissolve its affairs or enter into any merger, consolidation or share
exchange, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time), whether in one or a series of
transactions, all or any substantial part of its assets, or permit any
Subsidiary so to do, unless such transaction or series of transactions are
expressly approved by the Lender, which approval shall not be unreasonably
withheld.
(b) Liens. Create, incur, assume or suffer to exist any Lien upon or
with respect to any of its property or assets, whether now owned or
hereafter acquired, or assign or otherwise convey any right to receive
income, except Permitted Liens.
(c) Indebtedness. Create, incur, issue, assume, guarantee or suffer to
exist any Indebtedness, [or permit any Subsidiary so to do], except:
(i) Indebtedness to the Lender under this Agreement or under the
RSI Facility Agreement,
(ii) Non-recourse Indebtedness of the Borrower and any Subsidiary
secured by mortgages, encumbrances or liens specifically permitted by
Section 7.2(b), and
(iii) Indebtedness expressly approved by the Lender in writing,
which approval may be withheld in the Lender's sole discretion.
(d) Dividends . Declare any dividends on any of its shares of capital
stock unless such dividend or distribution is expressly approved in writing
by the Lender.
(e) Certain Amendments. Amend, modify or waive, or permit to be
amended, modified or waived, any provision of its Certificate of
Incorporation unless, within not less than 5 days prior to such amendment,
modification or waiver (or such later time as the Lender may in its sole
discretion permit), the Borrower shall have given the Lender notice
thereof, including all relevant terms and conditions thereof, and the
Lender shall have consented in writing thereto.
PICK UP HERE
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.1 Events of Default. If one or more of the following events
(each, an "Event of Default") shall occur:
(a) The Borrower shall fail duly to pay any principal of any Loan when
due, whether at maturity, by notice of intention to prepay or otherwise; or
(b) The Borrower shall fail duly to pay any interest, fee or any other
amount payable under this Agreement within two days after the same shall be due;
or
(c) Borrower shall fail duly to observe or perform any term, covenant,
or agreement contained in Section 7.2; or
(d) The Borrower shall fail duly to observe or perform any other term,
covenant or agreement contained in this Agreement, and such failure shall have
continued unremedied for a period of 30 days; or
(e) Any representation or warranty made or deemed made by the Borrower
in this Agreement, or any statement or representation made in any certificate,
report or opinion delivered by or on behalf of the Borrower in connection with
this Agreement, shall prove to have been false or misleading in any material
respect when so made or deemed made; or
(f) The Borrower shall fail to pay any Indebtedness (other than
obligations here under) in an amount of $100,000 or more when due; or any such
Indebtedness having an aggregate principal amount outstanding of $100,000 or
more shall become or be declared to be due prior to the expressed maturity
thereof; or
(g) An involuntary case or other proceeding shall be commenced against
the Borrower seeking liquidation, reorganization or other relief with respect to
it or its debts under any applicable bankruptcy, insolvency, reorganization or
similar law or seeking the appointment of a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of more than 60 days; or an order or
decree approving or ordering any of the foregoing shall be entered and continued
unstayed and in effect; or
(h) The Borrower shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency, reorganization or similar law or any
other case or proceeding to be adjudicated a bankrupt or insolvent, or any of
them shall consent to the entry of a decree or order for relief in respect of
the Borrower in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against any of
them, or any of them shall file a petition or answer or consent seeking
reorganization or relief under any applicable law, or any of them shall consent
to the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Borrower or any substantial part of its property, or the
Borrower shall make an assignment for the benefit of creditors, or the Borrower
shall admit in writing its inability to pay its debts generally as they become
due, or the Borrower shall take corporate action in furtherance of any such
action;
(i) One or more judgments against the Borrower or attachments against
its property, which in the aggregate exceed $100,000, or the operation or result
of which could be to interfere materially and adversely with the conduct of the
business of the Borrower remain unpaid, unstayed on appeal, undischarged,
unbonded, or undismissed for a period of more than 30 days; or
(j) Any court or governmental or regulatory authority shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
judgment, decree, injunction or other order (whether temporary, preliminary or
permanent) which is in effect and which prohibits, enjoins or otherwise
restricts, in a manner that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, any of the transactions
contemplated under this Agreement; or
(k) Any Event of Default shall occur and be continuing under the RSI
Facility Agreement.
then, and at any time during the continuance of such Event of Default, the
Lender may, by written notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitment and (ii) declare any Loans then outstanding to be due, whereupon the
principal of the Loans so declared to be due, together with accrued interest
thereon and any unpaid amounts accrued under this Agreement, shall become
forthwith due, without presentment, demand, protest or any other notice of any
kind (all of which are hereby expressly waived by the Borrower); provided that,
in the case of any Event of Default described in Section 8.1(g) or (h) occurring
with respect to the Borrower, the Commitment shall automatically and immediately
terminate and the principal of all Loans then outstanding, together with accrued
interest thereon and any unpaid amounts accrued under this Agreement, shall
automatically and immediately become due without presentment, demand, protest or
any other notice of any kind (all of which are hereby expressly waived by the
Borrower).
ARTICLE IX.
EVIDENCE OF LOANS; TRANSFERS
Section 9.1 Evidence of Loans. (a) The Lender shall maintain accounts
evidencing the indebtedness of the Borrower to the Lender resulting from each
Loan made by the Lender from time to time, including the amounts of principal
and interest payable and paid to the Lender in respect of Loans.
(b) The Lender's written records described above shall be available
for inspection during ordinary business hours by the Borrower from time to time
upon reasonable prior notice to the Lender.
(c) The entries made in the Lender's written or electronic records and
the foregoing accounts shall be prima facie evidence of the existence and
amounts of the indebtedness of the Borrower therein recorded; provided, however,
that the failure of the Lender to maintain any such account or such records, as
applicable, or any error therein, shall not in any manner affect the validity or
enforceability of any obligation of the Borrower to repay any Loan actually made
by the Lender in accordance with the terms of this Agreement.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 10.2 Waiver of Jury. THE BORROWER AND THE LENDER EACH HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, [THE NOTES] OR
THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 10.3 Jurisdiction and Venue; Service of Process . (a) The Borrower
and the Lender each hereby irrevocably submits to the non-exclusive jurisdiction
of any state or federal court in the Borough of Manhattan, The City of New York
for the purpose of any suit, action, proceeding or judgment relating to or
arising out of this Agreement and to the laying of venue in the Borough of
Manhattan The City of New York. The Borrower and the Lender each hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection to the laying of the venue of any such suit, action or proceeding
brought in the aforesaid courts and hereby irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(b) Borrower agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 10.7 or at such other address of
which the Lender shall have been notified pursuant thereto. The Borrower further
agrees that nothing herein shall affect the right to effect service of process
in any other manner permitted by law or shall limit the right to xxx in any
other jurisdiction; and
(c) The Borrower waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or consequential
damages.
Section 10.4 Confidentiality. The Lender agrees (on behalf of itself and
each of its Affiliates, partners, officers, employees and representatives) to
use its best efforts to keep confidential, in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with commercially reasonable business practices, any Confidential
Information; provided that nothing herein shall limit the disclosure of any such
information (i) to the extent required by statute, rule, regulation or judicial
process, (ii) to counsel for the Lender, (iii) to auditors or accountants, (iv)
by the Lender to an Affiliate thereof, or (v) in connection with any litigation
relating to enforcement of this Agreement; provided further, that, unless
specifically prohibited by applicable law or court order, the Lender shall,
prior to disclosure thereof, notify the Borrower of any request for disclosure
of any Confidential Information (x) by any Governmental Authority or
representative thereof or (y) pursuant to legal process.
Section 10.5 Amendments and Waivers. (a) Any provision of this Agreement
may be amended, modified, supplemented or waived, but only by a written
amendment or supplement, or written waiver, signed by the Borrower and the
Lender.
(b) Except to the extent expressly set forth therein, any waiver shall
be effective only in the specific instance and for the specific purpose for
which such waiver is given.
Section 10.6 Cumulative Rights; No Waiver. Each and every right granted to
the Lender hereunder or under any other document delivered in connection
herewith, or allowed it by law or equity, shall be cumulative and not exclusive
and may be exercised from time to time. No failure on the part of the Lender to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by the Lender of any right
preclude any other or future exercise thereof or the exercise of any other
right.
Section 10.7 Notices. Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a party
at its address as indicated below or such other address as such party may
specify in a notice to the other party hereto. A communication, demand or notice
given pursuant to this Agreement shall be addressed:
If to the Borrower, to:
Reckson Service Industries, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
If to the Lender, to:
Reckson Operating Partnership, L.P.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
This Section 10.7 shall not apply to notices referred to in Article II of
this Agreement, except to the extent set forth therein.
Section 10.8 Certain Acknowledgments. The Borrower hereby confirms and
acknowledges that (a) the Lender does not have any fiduciary or similar
relationship to the Borrower by virtue of this Agreement and the transactions
contemplated herein and that the relationship established by this Agreement
between the Lender and the Borrower is solely that of creditor and debtor and
(b) no joint venture exists between the Borrower and the Lender by virtue of
this Agreement and the transactions contemplated herein.
Section 10.9 Separability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 10.10 Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Lender and their respective
successors and assigns, except that the Borrower may not assign any of its
rights hereunder without the prior written consent of the Lender, and any
purported assignment by the Borrower without such consent shall be void.
Section 10.11 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
RECKSON SERVICE INDUSTRIES, INC.,
as Borrower
By:
---------------------------------
Name:
Title:
RECKSON OPERATING PARTNERSHIP, L.P.,
as Lender
By: RECKSON ASSOCIATES REALTY CORP.,
its general partner
By:
---------------------------------
Name:
Title:
